29 December 2015

Indigent Defense In Virginia - Pay

I haven't done indigent defense work in over nine years now, so I can't claim to be the most up to date expert on the nuances anymore. Thus, when a colleague asked me some questions about the manner in which court appointed counsel are paid I had to give an answer qualified by "but I haven't looked at that statutes in at least ten years." After that discussion, I decided to look and see what the current state of the law is and it has changed significantly since I moved over to prosecution.To begin with, there are certain (1) requirements. An attorney (a) has to turn in a detailed accounting of his time in the case (b) within 30 days of the completion of the case. After that the attorney is paid as follows:

Court

Basic Pay Per Charge

1st Waiver

2nd Waiver

District Adult

$120

+ $120

Unlimited

District Juvenile (Misdemeanor Analogue)

$120

+ $120

Unlimited

District Juvenile (Felony Analogue)

$120

+ $650

Unlimited

Circuit Felony Death Penalty

"An amount deemed reasonable by the court"

N/A

N/A

Circuit Felony more than 20 Years

$1235

+ $850

Unlimited

Circuit Felony less than 20 Years

$445

+ $155

Unlimited

Circuit Misdemeanor

$158

+ $0

Unlimited

Basic Pay Per Charge:District Courts: In the district courts, (2) it seems clear that (a) the defense attorney is to be fully paid for the first charge. Back when I was practicing, the defense attorney didn't even have to account for his time to get paid for that first charge. However, in 2007 the General Assembly took out the "without a requirement for accounting of time devoted
thereto" language and added the "detailed accounting" language, so (b) the defense attorney must now account for his time even on that first count. (3) For charges beyond the first the defense attorney must show that he spent more time in order to get paid. FIRST WAIVER: For all cases involving an adult or any case involving a minor in which an adult could be punished with 20 years or less, the trial judge can pay up to another $120. For a case involving a minor in which an adult could be punished by more than 20 years, the trial judge can pay up to another $650.Circuit Court: There is (4) no provision for any minimal payment in Circuit Court. However, it is clear that (5) if a charge is reduced to something that would pay less the defense attorney is still entitled to pay under the original pay scale.

FIRST WAIVER: For all cases in which the defendant could be punished by more than 20 years, the trial judge can pay up to another $850. For all cases in which the defendant could be punished by 20 years or less, the trial judge can pay up to another $155. No first waiver on misdemeanors in circuit court.
SECOND WAIVER - ALL TYPES OF CHARGES:
The second waiver is unlimited. However, it has to get cleared first by the trial judge and then cleared by the chief judge of either the district or circuit.Reasonable Expenses: There is a paragraph which is often badly misconstrued by courts in paying indigent defenders. It is the paragraph which allows defense attorneys compensation for expenses. I'll quote it here so you can read it yourself:

The circuit or district court shall direct the payment of such reasonable expenses incurred by such court-appointed counsel as it deems appropriate under the circumstances of the case. Counsel appointed by the court to represent an indigent charged with repeated violations of the same section of the Code of Virginia, with each of such violations arising out of the same incident, occurrence, or transaction, shall be compensated in an amount not to exceed the fee prescribed for the defense of a single charge, if such offenses are tried as part of the same judicial proceeding. The trial judge shall consider any guidelines established by the Supreme Court but shall have the sole discretion to fix the amount of compensation to be paid counsel appointed by the court to defend a felony charge that may be punishable by death.

Basically, this paragraph allows payment for expenses and limits payments in cases wherein the same type of charge is charged multiple times (limited to the amount that would be the fee for one charge).However, this paragraph has been badly misconstrued by various judges who have used it to limit fees which are charged by indigent counsel. That's a poor reading of the statute. This subsection's purpose is clearly laid out in the opening sentence: "payment of such reasonable expenses." Nothing in the rest of the paragraph indicates a movement away from that purpose. In fact the word "compensate" has a shaded meaning. It could mean being paid for time lost defending the case, but that is a strained reading. Instead, a more regular reading of that language would be that the defense attorney is to be paid back for outlays she has put forth out of her own pocket.

IF THE DEFENDANT DOES NOT SHOW FOR COURT: If (6) the defendant has (a) a capias (bench warrant) or (b) show cause summons issued, and (7) the defense attorney has appeared in court at least once, then (8) the defense attorney can get paid after the defendant has been missing for a year.All this and more can be found in Va. Code 19.2-163.

Disclaimer

In case anyone out there needs this warning: This ain't legal advice. Everything in the blog is off the cuff and no one goes back and reads all the cases and statutes before blogging. The law may have changed; cases misread and misunderstood two years ago can still lead to a clinging misperception. Courts in your county, city, or State probably don't operate as described herein. Feel free to be inspired, but YOU MUST ALWAYS DO YOUR OWN RESEARCH OR HIRE A COMPETENT ATTORNEY TO DO SO because I haven't.